LAW REPORTS.

Dominion, Volume 1, Issue 241, 4 July 1908, Page 9

LAW REPORTS.

SUPREME COURT.

OIYIL SITTINGS,

ALLEGED SLANDER,

SEARL v. LYONS,

CLAIM FOR £1000 DAMAGES,

The hearing of the case of Edward John Searl,. caterer (plaintiff), v.- Thomas P. Lyons, caterer (defendant)—a claim for £1000 damages for alleged slander—was continued at the Supreme Court yesterday morning before Mr. Justice Cooper and a common jury of twelve, of whom Miv Edward Breeze was the foreman.

Mr. A. Dunn appeared on behalf of plaintiff, and Mr. Sk'errett,; K.C.' (with him Mr. Bunny), for the defendant.

Plaintiff, -by his statement of claim, alleged that, at a meeting-. of his creditors, defendant falsely and maliciously published tho following words concerning him "This man (meaning plaintiff) has blackmailed and robbed me from the time I went into it (meaning thereby the business carried'on by plaintiff and defendant under tho style of Searl and Lyons), and the books will show at the present moment £100 short., Tho first month's rent (meaning thereby the-first month's rent'of the premises in Willis Street occupied by them) he put in his pockety and showed nothing for it." Subsequently (it was , further alleged) defendant also made use ,of tho fol; lowing words concerning plaintiff "Ho has a duplicate key for each place in Wellington at tho present' time ; Did ,'you not enter Mr. Hannah's premises at night and put back electric light fittings ho sued you for? Did you not enter May's Cafo the night lie gave up possession and destroy a range in such a manner that they could not open it for some days? You did." The amount of damages claimed by plaintiff was £1000. ,

Defendant by his statement, of.', defenco said that he was a creditor- of the plaintiff, and a late partner of plaintiff, and-in that capacity was invited by the Official Assignee to be present at the meeting in question. If tho statements were made by him ' they wero uttered in the honest discharge of his rights and duties, and in tho honest .belief of their truth, and without malico. As a further defenco, he said that, if it should bo established that tho words were'used, the occasion-was absolutely, privileged; also that no notice in. writingg as required by law had been given by plaintiff to the defendant.' , . . '

Further evidence was given on behalf of the plaintiff as follows:—. Edward B. Walker, of' John Brodie. and Co., land and estate agents, said that at his request Lyons in February gavo him particulars of tho business with a view , to its salo at £1000. Cross-examined, witness stated that Lyons suggested to liim that ho had already seen Searl about tho matter, but lie denied that such was the case. '

Albert Wylie, solicitor, employed by the firm • of Messrs. Skerrett and Wylie, evidence relating to the.payment of certain sums by Searl as rent. . ~. Frank Taylor, expressman, deposed that on the occasion of plaintiff .shifting from, Cuba Street , to Willis Street, some electric light fittings were packed by'him in a box and not removed. ... • •This was the conclusion of plaintiff's case. ' ■■ EVIDENCE OF DEFENDANT. Defendant stated, in evidence, that he was a restaurant keeper. In April, 1907, plaintiff asked him for the loan of £50. Plaintiff stated that be had been persecuted and robbed by four leading citizens. Ee (defendant) told him that he could not spare the money. On a subsequent occasion plaintiff told him that one A; H. Casey had the sum of .£4OO belonging to , one.- O'Kane, which ■would be available for him in'-a'few days. On the understanding that tho loan would be repaid some days later he advanced £44 to plaintiff. When the timo for repayment arrived plaintiff asked him'to take over the sharo in his business, ■which, he said,'O'Kane had originally intended to acquire. At a subsequent interview plaintiff told him that his sole liability was £200 to the D.LC. Ho then agreed to enter into partnership with, plaintiff. The total amount that lis had drawn out of the business was £4. Plaintiff had solo control of tbo business, and he (defendant) took 110 part in the management until August, 1907. About that date' he discovered that tho customers' tickets represented an amount of 275. in excess of the cash in the register. In October, 1907, plain,'tiff represented to him and his solicitor that the sum of £13 .was duo by the Wellington l Letter Carriers' Association and £5 by Tumbull, Hicksou, and Goodor when as a matter of fact the amounts had been paid. Subsequently the. plaintiff was adjudged a bankrupt. The Official Assignee invited him to attond the meeting of plaintiff's creditors. He put in a proof of debt in .the estate. Tho v/ords attributed to him were hardly correct. What he had asked plaintiff was whether he had not robbed him of tlie first money that lie had given him in addition to tho first month's rent. Then, again, he had asked him if he had not "disarranged" the range at May's Cafe,, hot if he had • " destroyed " the range. Plaintiff told him in the presence of his (plaintiff's) soliitor ; that .he would be able to wiu an action brought against him by Hannah because he and his son: had .-to- - turned the electric light -fittings which he was being sned for. This'statement was repeated both when defendant was alone and when ho was in the company of his daughter. Some time later plaintiff came into a room' where defendant was standings and, taking off his coat,' remarked: "'Wo will bo busy ,to-day." Upon defendant asking the reason, plaintiff said that lie had been i into May's Cafe and " fixed " their range. Defendant said, " How. did you get in?" and plaintiff declared that he had a duplicate key of all the places that he had been in. Plaintiff had formerly occupied'tho premises known as May's Cafe. All that ho could say in reply was: ''What tho -— will you do to me some day ? " Since ho had had solo control of the business ho had made it pay. He honestly believed that tho. statements-which ho made at the creditors' meeting were true. If he had not been fool enough to lend plaintiff £44 in the first instance he would never have gone into the restaurant business) CROSS-EXAMINATION OF DEFENDANT. ■ {Defendant was then cross-oxamined by Mr. Dunn, counsel'for tho plaintiff. He could, he %aid, point out ( over 100 items in tho books which would show'that plaintiff had robbed him. Some amounts not accounted for in the books must havo gone into plaintiff's pockct. He had put at least £1000 into the business. It was' true that 'lie had repeated tho charges, but .tWf persons who had interrogated liim on the subject had, Jie thought, been sent to'him by plaintiff. Tho public examination in bankruptcy of plaintiff was not arranged , to iielp :him (defendant), in tho present case. The Official Assigneo had stated at tho-meeting of creditors that the fact that a proposal in favour of tho holding of the public, examination was defeated would not prevent a public examination'being'held if ono wero considered to bo necessary.

' Mr. Duim: You havo mado accusations that stores wero removed from tho cafoP— Witness : Yes, I found that stores had been taken away on a number of occasions. Can you rofor to ■ an instance-?— Yes. Six pounds* of butter went out of sight right under our eyes. Scarl accused ono of the girls of tho theft, but his. own son-was the only person who' had left tho building. I would not accuse him of stealing tho butter/ ■ Rather an'extraordinary occurrence,.wasn't it? —Yes; very extraordinary; very greasy. (Laughter.) If your accountant says tho books wero well kept, will you contradict him?— No. • .Havo you sold the Willis Street bnsiness? —Yes, to my wife, because I was full of it. OTHER TESTIMONY. James Ashcroft, formerly Official Assignee, said that he invited defendant to attend a meeting of creditors in plaintiff's estate, Throughout the meeting plaintiff was 6xcoedingly rudo to defendant; in fact, ho showed no disposition to be courteous to defendant. Plaintiff denied that he had.

caused the strike among the girls, but defendant said that lie could prove it. ' The only asset in. the estate, as far as he knew, was .£5 received from Lyons for plaintiff's interest in a lease. Strong pressuro was brought to bear to have the lowost tenderthat of Mrs. Searl, £I—accepted,l—accepted, but ho resisted the pressure because it would have been unfair and unjust to. defendant. 'Witness was not responsiblo for tho holding of the public examination. Ho did not think that defendant intended to impute criminal acts to plaintiff; it' appeared to hiiji to ba an altercation between the parties—Searl provoked Lyons, who replied hotly; Lyons was entitled to attend the. meeting. Francis E. Petherick,. solicitor, who drew the deed of, partnership botween Soarl and Lyons, . stated ' that, ho understood Searl's liabilities to tho. D.I.C. were, under £200. On behalf of the'firm, witness paid £18 for the rent for June, and was under, the impression that the rent for May had been paid. Witness afterwards 'learned • that Searl had given hills of sale to Scoullar, Ltd., Pinny and Co., and other business people.

Henry Ivory, accountant, detailed at length the items appearing in tho books of account. '

The Court then adjourned until 10 o'clock this morning.

QUARTERLY RETURNS,

A-return of cases! criminal and civil,, and of all the business transacted in the various jurisdictions of the Supremo Court and Court of Bankruptcy at Wellington during the quarter ended Juno 30, 1908, was available yesterday. The figures in parentheses relate to the corresponding period of last year. _

Criminal Cases.—Sittiug days, 16 (14); indictments, 19 (12); indictments thrown out by. Grand Jury, 1 (2); convictions (including 1 committals for sentence), 32 (17); acquittals, 6 (3); subpoenas, 10 (26); offico copies, dopositions, etc.—folios, 1270 (1320). Civil Cases.—Sitting flays 15 (10); writs, , ordinary, 45 (42); -writs, bills of exchange, 12 (5); trials by common jury, 7 (4); trials by special jury, 0 (2); trials by Judge, I■(6); judgments entered, 16 (11); executions issued, 6 (4); taxations, 69 (79); 'subpoenas, ; 43 (32); office copies—folios 292 (250) i searches, 3 (8). '

, In Chambers.—Sitting .days, 39, (27); mo. tions, 236 (93); summonses, 50 (24); petitions, 12 (8); orders, 289 (2). .

In Banco.—Sitting days, 18 (30); motions, 10 (13) ; rules and orders, 21 (10); appeals from inferior Courts, 5 (10); special cases, 1 (A). In Divorce and Matrimonial Causes.—Sitting days, 3 (7); petitions filed, 21 (20); answers filed, 8 (7); motions in Chambers, 3 (4); orders,-6 (4); trials, 1 (14); decrees nisi, 7 (15); decrees ■ absolute, 6 (10); office copies—folios, 3 (70); searches, 4 (2). ' Probato and Administration. — Probates, 46 (74); administrations, 103 (24); elections to administer, 0 (36); exemplifications, ( 2 (10); office copies—folios, 24 (70); searches, 15 (26). ' \

Registration.—Bills of sale, mortgages of stock, bailment of stock and chattels, wool _ securities, agricultural .liens, 340 (382);' powers of attorney,-8 (6); other matters, 1 (0); searches, 604 (46J). In Bankruptcy—Sitting days, 6 (3); debtors' petitions, 11 (11); creditors' petitions, 7 (6)_; ' debtors' summonses, 0 (B)deeds of composi- j . tion, 0 (1); adjudications, 15 (11); discharges, 2 (6) ; motions in Chambers, 2" .(4); ; hearings, 8 (3); subpoenas, 0 (3); taxations, 0 (3); searches, 0 (2). " Fees, mortgagee sales, £2 '3s. 9d '(0),; baiikruptcy, £117 3s. (£l2l. 35.: 6d.); othej than bankruptcy, £785 6s. (£B2O 10s. 4d.); fines, ,£1 (£2). ■ Total, £905 12s. 9d. (£943 135., 10d.). ■